NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 18-3219

_______________

MOHAMED HASSAN SHEIKH IBRAHIM,

Petitioner 

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

Respondent.

_______________

On Petition for Review of an Order of the 

Board of Immigration Appeals

(Agency No. A072-377-286)

_______________

Submitted Under Third Circuit L.A.R. 34.1(a)

July 11, 2019

Before: SHWARTZ, KRAUSE, and FUENTES, Circuit Judges

(Opinion filed: July 16, 2019)

________________

OPINION*

________________

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

FUENTES, Circuit Judge.

Petitioner Mohamed Hassan Sheikh Ibrahim seeks review of an order of the Board 

of Immigration Appeals denying his motion to reopen removal proceedings sua sponte. 

Before this Court, Petitioner argues that the Board erred by not reopening and terminating 

his proceedings for lack of jurisdiction in light of the Supreme Court’s decision in

Pereira v. Sessions.

1 Petitioner also argues that the Board erred in not addressing his

alternative claim that his motion to reopen should be treated as a motion to reconsider 

because his motion warranted equitable tolling of the time limitation.

For the reasons that follow, we will deny the petition for review. 

I. 

Petitioner is a native and citizen of Somalia. In 1990, he was admitted to the 

United States as a non-immigrant. Petitioner was granted asylum in 1995, and adjusted

his status from asylee to lawful permanent resident in 1996.

A. Proceedings before the Immigration Court

In September 2011, the Department of Homeland Security commenced removal 

proceedings against Petitioner. On September 15, Petitioner was served in person with a 

Notice to Appear, charging him as removable on three grounds: (1) for having been 

convicted of two crimes of moral turpitude not arising out of a single criminal scheme;2

(2) for having falsely represented himself as a United Stated citizen;

3

and (3) for having 

 

1 138 S. Ct. 2105 (2018). 

2 See 8 U.S.C. § 1227(a)(2)(A)(ii). 

3 See id. § 1227(a)(3)(D)(i). 
3

been convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(R).

4 The

Notice ordered Petitioner to appear before an Immigration Judge in York, Pennsylvania, 

but did not specify the date and time of Petitioner’s initial removal hearing.

Nearly two weeks later, Petitioner received a Notice of Hearing from the

Immigration Court. The Notice scheduled his hearing for October 12, 2011 at 8:30 A.M.

Thereafter, Petitioner received a second Notice of Hearing rescheduling his hearing for 

October 17, 2011 at 1:00 P.M. Pursuant to that Notice, Petitioner appeared before the 

Immigration Judge on that date. After holding a hearing, the Immigration Judge issued an 

oral decision ordering Petitioner removed from the United States to Somalia. Petitioner 

waived his right to appeal to the Board.

Over four and a half years later, in July 2016, Petitioner filed a motion to reopen 

removal proceedings before the Immigration Judge. The Immigration Judge issued a 

written decision denying the motion.

B. Proceedings before the Board of Immigration Appeals

Petitioner appealed the Immigration Judge’s decision to the Board. Before the 

Board, in addition to arguing that reopening was warranted, Petitioner also presented a 

motion to remand. In February 2017, the Board dismissed Petitioner’s appeal and denied 

the motion. Petitioner then filed a petition for review, which we denied in September 

2017.

5

 

4 See id. § 1227(a)(2)(A)(iii).

5 See Ibrahim v. Att’y Gen., 708 F. App’x 740 (3d Cir. 2017).
4

Thereafter, in July 2018, before the Board, Petitioner filed an untimely and 

number-barred motion to reopen and terminate removal proceedings.6 Petitioner 

requested that the Board reopen the removal proceedings sua sponte,

7

and terminate the 

proceedings for lack of jurisdiction in light of the Supreme Court’s decision in Pereira.

8

In the alternative, Petitioner requested that the Board treat his motion as a motion to 

reconsider the Board’s February 2017 decision. According to Petitioner, although his 

motion to reconsider would be considered untimely,

9

equitable tolling of the 30-day time 

limitation was warranted. The Board declined to exercise its sua sponte authority to 

reopen and denied the motion.

Petitioner then filed the instant petition for review.

II. 

Petitioner seeks review of the Board’s denial of his motion to reopen sua sponte. 

Given the Board’s “unfettered discretion to decline to sua sponte reopen” removal 

proceedings, we generally lack jurisdiction to review such a decision.10 We may, 

however, “exercise jurisdiction to the limited extent of recognizing when the BIA has 

relied on an incorrect legal premise.”11 Here, Petitioner asserts that the Board relied on an 

incorrect legal premise in denying his motion to reopen sua sponte. Petitioner’s brief, in 

essence, argues that the Board relied on a misinterpretation of Pereira in concluding that 

 

6 See 8 U.S.C. § 1229a(c)(7)(A), (c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).

7 See 8 C.F.R. § 1003.2(a).

8 138 S. Ct. 2105. 

9 See 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R. § 1003.2(b)(2).

10 Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003). 

11 Pllumi v. Att’y Gen., 642 F.3d 155, 159-60 (3d Cir. 2011).
5

sua sponte reopening was not warranted. We have jurisdiction to consider this argument, 

but, for the following reasons, we disagree and conclude that the Board’s decision to 

deny sua sponte reopening was not based on legal error.

Petitioner maintains that Pereira stands for the proposition that a notice to appear 

that fails to specify the time and place of an initial removal hearing deprives an 

immigration judge of jurisdiction over the removal proceedings. Therefore, according to 

Petitioner, under Pereira, the Immigration Judge lacked jurisdiction because Petitioner 

received a Notice to Appear that did not include the time and date of his removal hearing.

We disagree. Petitioner’s reliance on Pereira is misplaced.

In the context of cancellation of removal, the Supreme Court in Pereira held that a 

notice to appear that fails to specify the time and place of removal proceedings “is not a 

‘notice to appear under section 1229(a)’ and therefore does not trigger the stop-time 

rule.”12

As we explained in Nkomo v. Attorney General, unlike the stop-time rule, which is 

explicitly tied to the list of elements in 8 U.S.C. § 1229(a),13 the jurisdiction-vesting 

regulation of 8 C.F.R. § 1003.14(a) does not cross-reference that Section.14 Rather, it 

states, in relevant part: “[j]urisdiction vests, and proceedings before an Immigration 

Judge commence, when a charging document is filed with the Immigration Court by the 

 

12 138 S. Ct. at 2110-14 (quoting 8 U.S.C. § 1229b(d)(1)(A)).

13 See 8 U.S.C. § 1229b(d)(1)(A) (stating, in relevant part, “any period of continuous 

residence or continuous physical presence in the United States shall be deemed to end . . . 

when the alien is served a notice to appear under section 1229(a) of this title”).

14 Nkomo v. Att’y Gen., No. 18-3109, 2019 WL 3048577, at *3 (3d Cir. July 12, 2019).
6

Service.”

15 A “charging document,” in turn, is defined, in relevant part, as “the written 

instrument which initiates a proceeding before an Immigration Judge . . . . includ[ing] a 

Notice to Appear[.]”16 Therefore, “[a] critical piece of Pereira’s reasoning” is not present 

here because the jurisdictional regulations do not require that a qualifying charging 

document be a notice to appear with a specific hearing date and time.

17 Moreover, 

Pereira has a narrow holding which “did not purport to resolve issues beyond the 

§ 1229b(d)(1)(A) stop-time rule context.”18

Accordingly, the Board correctly concluded that Pereira’s interpretation of “notice 

to appear” does not implicate the Immigration Judge’s authority to adjudicate and 

Petitioner was not entitled to equitable tolling based on his claim that Pereira constituted 

extraordinary circumstances.

III.

For the reasons stated, we will deny the petition for review.

 

15 8 C.F.R. § 1003.14(a).

16 Id. § 1003.13.

17 Nkomo, 2019 WL 3048577, at *3.

18 Id.